United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND
REMANDING ACTION TO FRESNO COUNTY SUPERIOR COURT (DOC. NO.
matter is before the court on plaintiff Gemini Trust Company,
LLC's (“Gemini Trust”) motion to remand.
(Doc. No. 3.) A hearing on the motion was held on June 18,
2019. Attorney Jennifer Poochigian appeared on behalf of
plaintiff. No. appearance was made on behalf of pro
se defendant Matthew Peter Castiglione. Having
considered the motion and the arguments of counsel, the court
will grant plaintiff's motion to remand.
March 15, 2019, plaintiff filed an amended petition to
confirm a contractual arbitration award in the Fresno County
Superior Court. (See Doc. No. 1 at 32-51.) In that
petition, plaintiff alleged that defendant failed to repay
plaintiff after defendant received an erroneous wire transfer
in the amount of $200, 000. (Id. at 33.) Plaintiff
further alleges that the parties participated in arbitration
on October 29, 2018 in New York City, which resulted in an
arbitration award requiring defendant to repay the
erroneously transferred $200, 000, costs and expenses in the
amount of $6, 786.80, and 9% interest on the $200, 000
beginning February 5, 2018. (Id.) Plaintiff's
state court petition seeks a court order confirming the
arbitration award and entry of judgment in accordance
therewith. (Id. at 34.)
2, 2019, defendant removed the action to this federal court
based on federal question jurisdiction and diversity
jurisdiction. (Doc. No. 1.) On May 17, 2019, plaintiff filed
the motion to remand now pending before the court. (Doc. Nos.
3-6.) Defendant did not file an opposition to the motion to
filed in state court may be removed to federal court if the
federal court would have had original jurisdiction over the
suit. 28 U.S.C. § 1441(a). Removal is proper when a case
originally filed in state court presents a federal question,
or where there is diversity of citizenship among the parties
and the amount in controversy exceeds $75, 000. See
28 U.S.C. §§ 1331, 1332(a).
1447(c) of Title 28 of the United States Code provides that
“[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.” “The removal statute is
strictly construed against removal jurisdiction, and the
burden of establishing federal jurisdiction falls to the
party invoking the statute.” Cal. ex rel. Lockyer
v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004)
(citation omitted); see also Provincial Gov't of
Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087
(9th Cir. 2009) (“The defendant bears the burden of
establishing that removal is proper.”). If there is any
doubt as to the right of removal, a federal court must reject
jurisdiction and remand the case to state court. Matheson
v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090
(9th Cir. 2003); see also Valdez v. Allstate Ins.
Co., 372 F.3d 1115, 1118 (9th Cir. 2004).
motion contends that this action should be remanded to state
court for two reasons: (1) defendant's notice of removal
is untimely; and (2) the court lacks subject matter
jurisdiction over the matter because there is no federal
question or diversity jurisdiction.
Timeliness of Removal
first argues that defendant's notice of removal was
untimely filed. (Doc. No. 4 at 2.) Plaintiff relies on
California Code of Civil Procedure § 1290.2, which
provides that an arbitration petition is “heard in a
summary way” and that “not less than 10 days'
notice of the date set for the hearing on the petition shall
be given.” (Id.) According to plaintiff,
defendant therefore had ten days from April 3, 2019-the date
he was served with the amended petition initiating the state
court action-to remove the matter to federal court.
(Id.) Plaintiff argues that the removal was untimely
because defendant did not remove this action until May 2,
2019, more than ten days after April 3, 2019. (Id.)
to plaintiff's contentions, § 1290.2 of the
California Code of Civil Procedure does not address removal
at all, and plaintiff otherwise cites no authority to support
a purported ten-day deadline for removal of this action to
federal court. Rather, 28 U.S.C. § 1446(b) sets the
deadline by which a defendant may remove a suit filed in
state court to federal court, providing a defendant thirty
days from receipt of the initial pleading or from receipt of
a paper, such as an amended pleading, from which it may first
be ascertained that the case is one which is or has become
removable. If, as plaintiff contends, defendant was served
with the amended petition on April 3, 2019 (Doc. No. 4 at 2),
defendant had thirty days from April 3, 2019 to timely file a
notice of removal. Defendant's notice of removal was
filed on May 2, 2019 and is therefore timely.
Subject Matter Jurisdiction